2005 - %3, October

The good news for the Republicans is that Americans don't see the GOP-controlled Congress or the Bush White House as any more corrupt than most congresses or administrations: 56 percent say the GOP-controlled Congress will turn out to be about the same as the previous Democratic-controlled Congress, 23 percent say it will be more corrupt, 15 percent says less. And 56 percent say the ethical conduct of members of Congress has "stayed the same" in recent years, 34 percent say it has declined and 7 percent say it has improved.

Guess more people need to read Sam Rosenfeld's American Prospectpiece on comparative ethics, and Louise Slaughter's report on House rules, and Nick Confessore's piece on how the GOP subsumed K Street, and Susan Milligan's three-partseries in the Boston Globe on how the GOP runs a "spoils system" in the House. It's not just anyone's imagination; these folks really are more abusive and unethical than previous Congresses.

Amidst continued, widespread criticism of FEMA's foul-ups in response to Hurricane Katrina, President Bush has announced that should an avian flu virus outbreak threaten the United States, he wants to use the military to quarantine citizens. Although currently there is no known strain of the avian flu transmissible between humans, should such a mutated strain arise the World Health Organization does recommend quarantine under certain conditions, in addition to the mass administration of drugs.

However, quarantine would not necessarily require investing the president with the power to use of the military on U.S. soil, which was restricted by the Posse Comitatus Act of 1878. CNN spoke with Gene Healy, of the conservative Cato Institute, who said:

Bush would risk undermining "a fundamental principle of American law" by tinkering with the act, which does not hinder the military's ability to respond to a crisis.

"What it does is set a high bar for the use of federal troops in a policing role," he wrote in a commentary on the group's Web site. "That reflects America's traditional distrust of using standing armies to enforce order at home, a distrust that's well-justified."

Healy said soldiers are not trained as police officers, and putting them in a civilian law enforcement role "can result in serious collateral damage to American life and liberty."

Oh good. Michael Scheuer, the CIA's former bin Laden chief, argues that the next generation of al-Qaeda lieutenants will be more pious, less arrogant, and thus less-easily detectable: "While leaders more pious than bin Laden and Ayman al-Zawahiri are hard to imagine, Western analysts tend to forget that many of bin Laden's first-generation lieutenants did not mirror his intense religiosity. Wali Khan, Abu Zubaidah, Abu Hajir al-Iraqi, Khalid Sheikh Muhammed, Ibn Shaykh al-Libi, and Ramzi Yousef were first generation fighters who were both swashbuckling and Islamist. Unlike bin Laden and Zawahiri, they were flamboyant, multilingual, well-traveled, and eager for personal notoriety. Their operating styles were tinged with arrogance and each was captured, at least in part, because they paid insufficient attention to personal security. Now al-Qaeda is teaching young mujahideen to learn from the security failures that led to the capture of first-generation fighters."

To some extent, one would expect this to happen to any organization, via natural selection, as the most easily-captured are, well, captured. Meanwhile, Scheuer points out that the potential ranks of mujahideen are still very, very large, what with Islamist insurgencies in Iraq, Chechnya, southern Thailand, Mindano, Kashmir, and Afghanistan, along with what he calls the "Talibanization" of Bangladesh, Pakistan, and northern Nigeria. Luckily, though, the administration has been waging a fierce covert battle against lawsuits over defective car roofs. So, you know, it's not all bad.

Guards working for Haiti's interim leader have been accused of assaulting at least two journalists at a ceremony in the capital, Port-au-Prince.

The journalists say they were hit as they tried to cover the inauguration of the Supreme Court, attended by President Boniface Alexandre.

Mr Alexandre's chief of security said the reporters tried to force their way in after arriving late.

He said US company DynCorp had provided the president's bodyguards.How nice: Haitian security has been subcontracted out to a U.S. corporation. You would think that foreign governments would have seen how bad an idea this was after the U.S.'s debacle with subcontracting to private security firms in Iraq.

Ultimately, I think Jack Balkin gets the Harriet Miers pick right. By historical standards, she's not particularly "unqualified" or crony-tasticEugene Volokh made a similar point yesterday, noting that corporate lawyers with presidential connections very often get put on the court. And she'll help deliver exactly what Bush's real basenamely, business interests, not the religious right or libertarian bloggerswants:

[W]hat, exactly, does business want? Overturning the New Deal? The Constitution in Exile? The return of God to the public schools? The end of affirmative action? Outlawing abortion once and for all? Squashing gays and lesbians underfoot? None of these things. What business wants is stability, comfort, predictability, and an agile, productive, submissive and demobilized population. It wants a powerful executive that can protect America's interests abroad. It wants a Congress freed from federal judicial oversight that is able to dish out the pork, jiggle the tax code and deregulate the economy according to its ever shifting concerns and interests. And it wants a Supreme Court that will give a pro-business President and a pro-business Congress a free hand, a Court that will protect the rights of employers over employees, advertisers over consumer groups, and corporations over environmentalists.

In that sense, she'll be a perfect replacement for O'Connor, who was a very similar type of business-friendly, don't-rock-the-boat type of judge. (And hey, back in July didn't someone predict that just this very thing would happen?) Now I'm also guessing that Miers' presumable willingness to help expand presidential wartime powers was a factor, but the business angle seems like the simplest and easiest explanation, and everything else is probably just overthinking it.

The New York Timesreports that Shiite and Kurdish leaders in Iraq are now trying to make sure that the draft constitutionopposed by the Sunniscan't possibly fail in its referendum this month:

Under the new rules, the constitution will fail only if two-thirds of all registered voters - rather than two-thirds of all those actually casting ballots - reject it in at least three of the 18 provinces.

The change, adopted during an unannounced vote in Parliament on Sunday afternoon, effectively raises the bar for those who oppose the constitution. Given that fewer than 60 percent of registered Iraqis voted in the January elections, the chances that two-thirds will both show up at the polls and vote against the document in three provinces would appear to be close to nil.

Now they just need to import a few Diebold machines and they'll be all set. No, but seriously, this entire constitutional process has become near hopeless. Ostensibly, it was supposed to reconcile Shiite and Sunni communities and avoid deepening the ongoing sectarian war between the two, and that's still what many American officials are aiming to do. In practice, however, the Shiites and Kurds have treated the constitution merely as a means of pressing the advantages they won in parliament after the January elections, and the United States has too often treated it as a means of de-legitimizing the insurgent movement (although Ambassador Zalmay Khalilzad has recently pushed to make the constitution more Sunni-friendly). Under the circumstances, then, it's no surprise that something like this would happen and the whole reconciling communities thing would just get lost by the wayside.

Last week, House Republicans protested a proposal to name a post office in Berkeley after a former councilwoman and peace activist, Maudelle Shirek. Although most such proposals pass without comment, Rep. Steve King (R-IA) opposed the resolution, demanded an unusual roll-call vote, and rallied Republicans to shoot it down, denouncing the 94-year old Shirek as "un-American." Chip Johnson, a columnist for the San Francisco Chronicle, noted that it was the first such rejection in history:

Shirek's supporters could make a pretty strong argument that she has done as much for Berkeley as Hall of Fame baseball pitcher Jay Hanna "Dizzy" Dean did for his hometown of Wiggins, Miss., or Chick Hearn did for the Los Angeles community of Encino, which honored the longtime voice of the Los Angeles Lakers with a post office in his name.

Defending his opposition to Shirek based on her "affiliation" with a Marxist library, King told the Chronicle, "I think that if Barbara Lee [a defender of Shirek's] would read the history of Joe McCarthy she would realize that he was a hero for America." Lee, who proposed the resolution, vowed to continue fighting for the dedication.

To add to Ryan Lizza's dossier, which suggests that Miers supports the International Criminal Court, gay adoption, and hiking property taxes in her spare time, here are some random Nexis bits about the nominee, in a mostly-futile attempt to try to glean her opinions about various matters. The short answer: There's really not much to discover. Hearsay has it that she's reliably conservative, but she hasn't made much noise in that direction, at least publicly. First, a quote from her 2000, working for Locke Liddel and Sapp in Dallas, discussing the need for women-friendly workplaces:

Harriet Miers, co-managing partner of Locke Liddell and Sapp in Dallas, says firms need to adopt policies that are friendly to families to aid women who are pulled in many different directions. Those policies could include part-time employment, flex time, on-site child care or dependent-care assistance.

Way back in 1994, after she stepped down as president of the Texas Bar, she led the push to get the American Bar Association to adopt a neutrality stance on abortion. Texas Lawyer reported:

At the August 1993 meeting in New York, the neutrality advocates, led this time by Locke Purnell Rain Harrell partner Harriet Miers of Dallas, failed to set aside the abortion rights policy. They then shifted strategy and asked the ABA to poll all its members -- not just those in the House of Delegates -- on the abortion question.

She was pushing for this, as far as I can tell, in her capacity as a private citizen. This doesn't necessarily mean she's rabidly pro-life, but it's an inkling in that direction. Meanwhile, in 1993, here's Miers talking about the need for better court-appointed lawyers to defend death-penalty cases:

But Bar President Harriet Miers, a member of the ABA Journal's board of editors, said the state's reliance on volunteer lawyers in life and death matters is "unacceptable."

That's a liberal policy position, although I'm not sure if it was one you'd expect a Bar President to take up anyway. That year she was also supportive of rules to restrict lawyer advertising in the "public interest":

Harriet Miers of Dallas, 1992-93 Bar president, said she supports Morrison's proposed changes to the Bar's rules. "This is a very timely plan," she said. "Public concern about lawyer advertising is at an all- time high. I applaud Lonny Morrison for addressing the issue head-on and I'm confident that, with his leadership in the coming Bar year, we will succeed in getting a positive response from Texas attorneys to effect a change."

Not sure what that means, but there you go. As it happens, she was also supportive of rules regulating ambulance-chasing by lawyers; so either she's not averse to regulation or she's not averse to regulation of lawyers. By the way, a Houston Chronicle article from 1992 on lawyer jokes notes that Miers doesn't seem to mind them. So, uh, there. For the record, I think she's a terrible pick, but I can also see why conservatives are a bit uneasy right now.

MORE: Garance Franke-Ruta has other clips, including Miers' thoughts in 1992 on whether a president should ask a judicial nominee her thoughts on Roe vs. Wade: "Nominees are clearly prohibited from making such a commitment and presidents are prohibited from asking for it," and that people who want such commitments display "a misunderstanding of the separation of powers by proposing that judicial nominees should mirror a president's views." Interesting.

Kelly Hearn, a former UPI reporter, notes in an article on Alternet that the FBI is cracking down on eco-terrorism, which is fair enough, but that the federal government and various conservative groups are also pushing to expand the fight to include mainstream environmental groups and regular protestors. I don't really hold any brief for people who torch SUVs or firebomb McDonalds, but some of this seems ludicrous:

As the FBI works to shut down elusive and decentralized eco-terrorist networks, civil rights groups say agents are going so far as illegally spying on activists. In June, a federal disclosure lawsuit by the American Civil Liberties Union forced the FBI to admit having collected 2,400 pages of files on Greenpeace, the most vocal critic of the Bush administration's environmental record, in addition to other groups .

At a June hearing, [Larry Frankel, legislative director of the ACLU] told a Senate committee that under such a law "people who protest outside of an animal research facility and block the entrance to that facility may be considered eco-terrorists. On the other hand, people who protest outside of a weapons-manufacturing plant and block the entrance to that facility will not be subject to enhanced penalties even though they are engaged in essentially similar activities."

The main problem here seems to be that the Patriot Act's definition of terrorismany dangerous activity that "appear to be intended to intimidate or coerce a civilian population or to influence the policy of government by intimidation or coercion"blurs the line between firebombing and standard protesting. Not to mention the fact that this is all a very transparent attempt to attack environmental groups; one hardly need condone eco-terrorism to point out that this is all extremely slimy.